Friday, June 29, 2007

I just read a great article in the June 2007 ABA Law Technology Today called Google to the Rescue: A Go Tech Virtual Office on a No Tech Budget by Craig Ball. And just before I read the article, I attended an online presentation by a regional library organization on a couple of other Google tools. If you haven't looked into the services that Google has to offer apart from their search engine, now is a good time to do so. The learning curve for these services and tools is almost nil and you can't beat the price.

Thursday, June 28, 2007

[SPECIAL NOTE:This opinion uses "Universal Citation" and was given an "official" citation when issued.You should use this citation whenever you cite the opinion, with a P.3d parallel citation.You will note that all of the paragraphs are numbered.When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number.The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Olsen v. Kilpatrick & Malcom

Citation:2007 WY 103

Docket Number:06-190

Appeal from the DistrictCourtofLaramieCounty, the Honorable Peter G. Arnold, Judge

Issues:Whether the district court abused its discretion when it entered an injunction against Appellant prohibiting him from violating the protective covenants of the subdivision where Appellant and Appellees own property.Whether the district court erred by refusing to join all landowners in the subdivision in a declaratory judgment action regarding the construction and validity of the covenants for that subdivision.

Facts/Discussion: Olsen challenged a district court ruling in favor of Kilpatrick regarding covenants governing the subdivision in which Olsen was building a pheasant farm.The Court reviews the district court’s decision to grant injunctive relief for abuse of discretion.The permanent injunction enjoined Olsen from conducting preliminary preparation, maintaining on the property any structure, from breeding, keeping, raising poultry or game birds, and from displaying signs on the property.Covenants are contractual and therefore interpreted and enforced according to the principles of contract law.Permanent Injunction:The Court was not convinced that the district court erred in relying on paragraph 4 in issuing its injunction.The law of contract plainly states that a contract is to be interpreted as a whole.The covenants were before the Court in their entirety having been entered into evidence at trial.The court’s consideration of paragraph 4 did not appear to constitute an abuse of discretion under the circumstances.The Court did not enter into an in-depth analysis of the district court’s discretion in this area because the order could be upheld on the basis of the parties’ intent as found in the contract.The Court stated it could uphold the district court’s decision based on the clear violation of paragraph 12 alone.The affirmative requirement that Olsen remove the pheasant pen from his land was not an abuse of discretion even in the face of Olsen’s compliance with the preliminary injunction.Declaratory Relief: Citing Revelle, the Court stated that the trial court provided effective relief through injunction so it was unnecessary to go further.The Court reversed the portions of the district court’s judgment that constituted declaratory relief as the injunctive relief provided effectively resolved the dispute between the parties.

Holding: The trial court did not abuse its discretion in granting injunctive relief because Appellant was in clear violation of Paragraph 12 of the covenants the court found to be in effect between the parties.The Court did not address the jurisdictional issues related to declaratory relief because the district court’s injunction provided full and effective relief to Appellee and effectively determined the rights of the parties to this action.

Tuesday, June 26, 2007

[SPECIAL NOTE:This opinion uses "Universal Citation" and was given an "official" citation when issued.You should use this citation whenever you cite the opinion, with a P.3d parallel citation.You will note that all of the paragraphs are numbered.When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number.The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Iseli v. State

Citation:2007 WY 102

Docket Number:06-181

Appeal from the DistrictCourtofNatronaCounty, the Honorable Scott W. Skavdahl, Judge

Issues:Whether the district court erred in instructing the jury as to the elements of Wyo. Stat. Ann. § 6-5-204(b).Whether the district court erred in refusing to give an adequate theory-of-defense instruction.Whether the district court erred in refusing to give the appellant’s preferred self-defense instruction.

Facts/Discussion: This appeal is from Appellant’s convictions for interference with a peace officer and causing bodily injury to a peace officer in which Appellant raises several issues concerning jury instructions.Jury instructions will not be ruled defective absent a showing that the instructions confused or misled the jury as to the proper principles of law and prejudiced the defendant.The theory of defense instruction to the jury must sufficiently inform the court of the defendant’s theory and must be supported by competent evidence.The district court must exercise discretion in determining what theory-of-defense instructions are to be given.Did the district court err in instructing the jury as to the elements of Wyo. Stat. Ann. § 6-5-204(b):The Court reviewed the proposed instructions and the instructions given by the district court.The instructions adequately informed the jury as to the elements of the crime and the State’s burden of proof and provided the legal basis from which Appellant could argue that he was not guilty because he did not know that Investigator Davis was a peace officer.Did the district court err in refusing to give an adequate theory-of-defense instruction:The Court noted that if Appellant knew Davis was a peace officer, then he had no right to defend himself against arrest so no self-defense instruction was warranted.If Appellant did not know Davis was a peace officer, he could not be guilty of the charged crime so no self-defense instruction was warranted.If Davis had used excessive force then Appellant would have been entitled to defend himself but there was no evidence suggesting excessive force was used.Did the district court err in refusing to give the appellant’s proffered self-defense instructions:There was no evidence to support proposed instruction “C.”Proposed instruction “D” was a misstatement of the law and “E” was refused by the district court for the same reasons.The Court stated it was not an abuse of discretion for the district court to refuse to give those instructions.

Holding: The district court did not abuse its discretion in refusing Appellant’s proposed jury instructions.

Friday, June 22, 2007

[SPECIAL NOTE:This opinion uses "Universal Citation" and was given an "official" citation when issued.You should use this citation whenever you cite the opinion, with a P.3d parallel citation.You will note that all of the paragraphs are numbered.When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number.The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Issue:Whether the decision of the OAH denying worker’s compensation benefits was arbitrary, capricious, and an abuse of discretion given that the Claimant met her evidentiary burden of proof establishing that her attendance at the December 18, 2004, fundraising event was within the court and scope of her employment.

Facts/Discussion: Wright appeals a district court order affirming the OAH’s denial of her claim for worker’s compensation benefits on the grounds that she failed to carry her burden of establishing a compensable injury.Wright worked at the Absaroka Head Start and attended a skating fund-raiser event at the direction of a teacher.She fell and broke her leg while skating at the event.

Standard of Review:The Court reviews an administrative agency order as if it came directly from the agency affording no special deference to the district court’s decision. Although Wright phrased her issue in terms of an arbitrary and capricious standard, the standard of review in appeals where both parties to a contested case submitted evidence, is the substantial evidence test.

The Court discussed Cronk v. City of Cody, DeWall v. State, and Hepp v. State.Those cases help answer the question of whether the employee was in a place her employer required her to be and whether the employee was engaging in an activity which her employer required as a condition of employment.The Court reviewed the record and found ample evidence to support the hearing examiner’s findings.All objective evidence established that Wright was not in a place or involved in an activity required by Absaroka as a condition of her employment.

Holding: The decision of the hearing examiner was supported by substantial evidence.Wright was not required to attend the fund-raiser as a condition of her employment.The district court’s order upholding the hearing examiner’s denial of benefits was affirmed.

I was able to attend a portion of the GAL conference held in Casper recently and I want to share with you the items we have available in the library to support your work as an Attorney/GAL.

These include from the Child Abuse & Neglect User Manual Series:

A Guide for Caseworkers

Supervising a Child Protective Services Caseworker

The Role of Educators in Preventing & Responding to Child Abuse & Neglect

Child Neglect: A Guide for Prevention, Assessment & Intervention

A Coordinated Response to Child Abuse & Neglect: The Foundation for Practice

Child Protection in Families Experiencing Domestic Violence

Working With the Courts in Child Protection

Additional titles include:

Representing Children in Child Protective Proceedings

Children's Exposure to Domestic Violence: A Guide to Research & Resources

Child Welfare Law & Practice

We also have items more judicial in orientation:

A Judicial Checklist for Children & Youth Exposed to Violence from the National Council of Juvenile & Family Court Judges

In addition, we provide free electronic access to journal articles via HeinOnline in the law library (your local county library also provides access.) The Uniform Laws are available online, via the website from the University of Pennsylvania Biddle Law Library. The Wyoming Statutes Annotated (scroll to the bottom of the page for the Annotated link) and the Wyoming Court Rules are online too.

Wednesday, June 20, 2007

[SPECIAL NOTE:This opinion uses "Universal Citation" and was given an "official" citation when issued.You should use this citation whenever you cite the opinion, with a P.3d parallel citation.You will note that all of the paragraphs are numbered.When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number.The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

The matter came before the Court upon a “Report and Recommendation for Public Censure” filed May 16, 2007, by the Board of Professional Responsibility for the Wyoming State Bar.The Court, after a careful review of the Board’s report, Bar Counsel’s “Motion for Public Censure and to File a Report and Recommendation for Discipline,” the Respondent’s “Section 16 Affidavit,” the affidavit of Costs and Expenses, and the file, finds that the Report and Recommendation should be approved, confirmed and adopted by the Court; and that Respondent should be publicly censured in the manner set forth in the Report and Recommendation.

Respondent shall receive a public censure for his conduct in a manner consistent with the recommended censure contained in the Report and Recommendation for Public Censure; Respondent shall complete 15 additional hours of CLE in addition to the mandatory CLE requirements; Respondent shall draft a billing form for use in matters where he uses an outside contractor; Respondent shall reimburse the Wyoming State Bar the amount of $59.97 for some of the costs incurred in handling the matter as well as pay an administrative fee of $500.00 to the Clerk of the Board of Professional Responsibility on or before September 1, 2007.The order shall be docketed as a public record and published in the Wyoming Reporter and the Pacific Reporter, served upon the Respondent and transmitted to the members of the Board of Professional Responsibility and the appropriate clerks of court.

The Report and Recommendation for Public Censure can be found at the link below.

Tuesday, June 19, 2007

[SPECIAL NOTE:This opinion uses "Universal Citation" and was given an "official" citation when issued.You should use this citation whenever you cite the opinion, with a P.3d parallel citation.You will note that all of the paragraphs are numbered.When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number.The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Jacobsen v. Cobbs, MD

Citation:2007 WY 99

Docket Number:06-83

Appeal from the DistrictCourtofLincolnCounty, the Honorable Dennis L. Sanderson, Judge

Issues:Whether the lower court’s Order Denying Motion for Enlargement of Time, Denying Rule 56(f) Motion and Granting Summary Judgment was proper and in accordance with established law.Whether the lower court erred in relying on the Affidavit of Kenneth F.B. Cobbs, MD, as the basis for granting the Defendant’s Motion for Summary Judgment.

Facts/Discussion: Jacobson filed a medical malpractice action against Cobbs.In the course of litigation, Cobbs filed a motion for summary judgment supported by his affidavit in which he opined that his treatment of Jacobson met the applicable standard of care.Jacobson failed to substantively oppose the motion and instead filed motions to extend the time to respond.The district court denied Jacobson’s motions and granted summary judgment to Cobb.

Standard of Review:A summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, admissions and affidavits show that there is no genuine issue as to any material fact.

Motion for Enlargement of Time and W.R.C.P. 56(f) Motion:The Court applied an abuse of discretion standard in reviewing the district court’s decision denying Jacobson’s motions for additional time.The district court explained its reasons for denying the request for additional time including: the failure to answer or respond to discovery served by Defendant after multiple extensions, the failure to seek a scheduling order, the failure to serve discovery on the Defendant, the failure to respond to the Court’s order to Show Cause and the failure to respond substantively to Defendant’s Motion for Summary Judgment.The Court agreed with the district court’s assessment.Rule 56 requires that adequate time be allowed for discovery to be conducted.The Court noted that Jacobson had over ten months in which to commence discovery and failed to take any action during the pendency of the matter to commence or complete discovery.

Affidavit of Dr. Cobbs:The affidavit of Dr. Cobbs was sufficient under the standards set by W.R.C.P. 56(e).It was based on his personal knowledge, it set forth his qualifications and background, it described his treatment and he attached the medical records upon which he relied and he set forth his opinion that his treatment did not fall below the appropriate standard of care.Because Cobbs’ affidavit adequately supported his motion, the burden shifted to Jacobson to establish a genuine issue of material fact.Jacobson failed to meet his burden.

Holding:Because Jacobson was dilatory in prosecuting his case, the district court did not abuse its discretion by denying the motion for enlargement of time and the W.R.C.P. 56(f) motion.As the party opposing the summary judgment motion, he was required to show that evidence was available that would justify a trial on the issue of negligence.Jacobson failed to come forward with any such evidence and summary judgment was therefore properly granted.

[SPECIAL NOTE:This opinion uses "Universal Citation" and was given an "official" citation when issued.You should use this citation whenever you cite the opinion, with a P.3d parallel citation.You will note that all of the paragraphs are numbered.When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number.The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Kinstler v. RTB S. Greeley, Ltd. LLC.

Citation:2007 WY 98

Docket Number:06-218

Appeal from the DistrictCourtofLaramieCounty, the Honorable Nicholas G. Kalokathis, Judge

Issues:Whether the district court erred in its finding of fact that Kinstler had not complied with the Lease’s requirement to notify RTB of the alleged default or in its conclusion of law that Kinstler could not rely on the alleged default as a material breach that excused him from paying rent.Whether the district court’s decision should be summarily affirmed or Kinstler sanctioned, because of his failure to comply with the Wyoming Rules of Appellate Procedure.Whether the Lease entitles RTB to an award of attorney’s fees against Kinstler.

Facts/Discussion: Kinstler appeals from a judgment entered in favor of RTB arising from a failure to pay rent for premises leased from RTB.Kinstler contended that the failure to pay rent was excused by RTB’s material breach of the lease agreement.

Standard of Review:The Court reviews a district court’s findings of fact and conclusions of law using a clearly erroneous standard for the factual findings and a de novo standard for the conclusions of law.

Material Breach:The Lease unambiguously required notice of an alleged default.Kinstler did not identify any evidence in the record establishing the required notice was given.The Court therefore could not find the decision clearly erroneous.Indeed, whether or not the breach was material, the district court correctly concluded Kinstler could not rely on it because he failed to comply with the Lease’s notice requirement.Kinstler raised other issues that were not presented with cogent argument or pertinent authority, so the Court refused to consider those contentions.Summary Affirmation or Additional Sanctions:The Court declined to summarily affirm the district court’s decision or to impose additional sanctions as requested by RTB.Reasonable compliance with applicable procedural rules and requirements is mandatory but the Court affords pro se litigants some leniency when the violations do not preclude meaningful review.Attorney’s Fees:The Lease provided that the prevailing party was entitled to reasonable attorney fees incurred because of an alleged breach.RTB is the prevailing party and is entitled to reasonable attorney’s fees incurred on the appeal.

Holding:The Court did not find the district court’s decision to be clearly erroneous.Kinstler failed to comply with the Lease’s requirements to notify RTB of an alleged default and as a result could not rely on it as a material breach that excused him from paying rent.The Court declined to summarily affirm the district court decision because Kinstler’s violations of the rules did not preclude meaningful review.Under the terms of the lease, RTB is entitled to an award of reasonable appellate attorney’s fees.The amount will be determined after submission of proper documentation by counsel.

[SPECIAL NOTE:This opinion uses "Universal Citation" and was given an "official" citation when issued.You should use this citation whenever you cite the opinion, with a P.3d parallel citation.You will note that all of the paragraphs are numbered.When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number.The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Qwest Corp. v. The Public Service Commission of WY and Silver Star Comm., Inc.

Issue:Whether the PSC exceeded its statutory authority when it ordered Qwest to prepare and submit an exchange-specific TSLRIC Study for the Afton Exchange.

Facts/Discussion: Qwest questions the authority pf the WY Public Service Commission (PSC) under the Wyoming Telecommunications Act of 1995.In an administrative proceeding, the PSC rejected Qwest’s 21004 Total Service Long-Run Incremental Cost Study (TSLRIC) and ordered Qwest to submit an exchange-specific study for the Afton, WY Exchange.Qwest contended that the PSC lacked statutory authority to order a TSLRIC for the Afton Exchange.Standard of Review:The sole issue is the extent of PSC’s statutory authority.As set forth in the Wyoming Administrative Procedure Act, the Court will interpret the statutory provisions, and set aside the agency’s action if it exceeds its authority.TSLRIC Studies help to promote competition because they set a floor price for telecommunications services.Telecommunications providers must submit TSLRIC Studies to the PSC for review and approval at least once every three years.Jurisdiction:The W.R.A.P. provide that a timely petition for rehearing extends the deadline for seeking judicial review of an agency decision.Qwest’s petition for rehearing tolled the appeal deadline; the petition for review was timely and the Court had jurisdiction to consider the appeal.Qwest’s Arguments:Qwest argued that Wyo. Stat. Ann. § 37-15-202(a) limited the PSC’s authority to regulate prices and to require TSLRIC studies; that the PSC exceeded its authority because the TSLRIC was not necessary and that PSC’s order requiring it to prepare the TSLRIC was discriminatory.Qwest and Silver Star differed in their method of averaging costs in the Afton are with costs in other parts of the state.The PSC found that Qwest had not met its burden of demonstrating significant differences in the cost of services but concluded that Qwest did not have to disaggregate TSLRIC costs separately for each of its Wyoming Exchanges.The PSC therefore ordered Qwest to prepare and submit an exchange-specific TSLRIC Study for the Afton Exchange.Under the Act, the PSC may designate certain telecommunications services as competitive.The PSC designated services in the Afton Exchange as competitive and not subject to regulation.Qwest argued that the PSC lacked the authority to require the TSLRIC.The statute authorizes TSLRIC Studies to be used to regulate prices in addition to other uses.The Court interpreted Wyo. Stat. Ann. § 37-15-202(a) as prohibiting the PSC from regulating prices in competitive markets but not prohibiting the PSC from requiring TSLRIC Studies for competitive markets for purposes other than regulating prices.The Court concluded that the PSC had authority under Wyo. Stat. Ann. § 37-15-402(a) to require PSLRIC Studies for competitive and noncompetitive markets.The statute indicated the legislature deemed TSLRIC Studies necessary and relevant to the extent required under Wyo. Stat. Ann. § 37-15-401(a)(iv).Qwest complained of unreasonable discrimination noting that the PSC ruled that Silver Star did not have to file a TSLRIC Study for the Afton Exchange because it was a competitive market.And now, in the current case, the PSC has used contrary reasoning and reached the opposite ruling.The Court stated that if the PSC has not applied the statute as written to Silver Star, it has the authority to correct the oversight.

Holding:The plain language of the Act provided statutory authority for the PSC to require TSLRIC Studies for competitive markets.The PSC did not exceed its statutory authority when it ordered Qwest to prepare and submit an exchange-specific TSLRIC Study for the Afton Exchange.

[SPECIAL NOTE:This opinion uses "Universal Citation" and was given an "official" citation when issued.You should use this citation whenever you cite the opinion, with a P.3d parallel citation.You will note that all of the paragraphs are numbered.When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number.The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Issues:Whether the builder’s risk policy claims, including reformation, were barred by the construction company’s failure to read the insurance documents or by its failure to mitigate damages.Whether the district court erred in denying the construction company’s motion to amend its complaint.

Facts/Discussion: McMurry appealed from summary judgments granted to an insurance agency and an insurance company in a controversy primarily involving a builder’s risk insurance policy.McMurry appeals from the district court’s denial of its motion to amend its complaint.

Standard of Review:When the Court reviews a summary judgment, they have before them the same materials as the district court had and they follow the same standards which applied to the proceedings below.In the present case, BW Ins. and Ohio Casualty both admitted negligence and breach of contract which left a purely legal issue for the Court to review de novo.The issue was whether McMurry’s claims were barred by its failure to read the builder’s risk policy documents or its failure to mitigate damages.The Court’s analysis focused on whether the equitable doctrine of reformation survived in the face of a clear violation of the failure-to-read rule and the failure to mitigate damages.The Court espouses the principle that an insured has a duty to read his or her insurance policy.The federal courts have also interpreted Wyoming law as imposing upon an insured the duty to read his or her policy.The Court conjectured that BW and Ohio admitted negligence and breach of contract for purposes of their summary judgment motions under the assumption that failure to read the policy and failure to mitigate damages protected them from liability.McMurry countered that in none of the cases cited did those defenses triumph in the face of a properly pled and proven cause of action for reformation of contract.Reformation is dependent upon an agreement having been reached and that the agreement had been correctly recited in the subsequently written instrument.The Court stated the question it was being asked to consider was whether McMurry could seek reformation, given its failure to read the policy.Cordero Mining Co. v. United States Fidelity& Guarantee Insurance Co. was the only one of the cases cited in which the reformation of contract was actually raised as a claim in the complaint.The Court summarized that even after Cordero, they have only gone so far as to say that the defenses of failure to read and failure to mitigate barred a plaintiff’s legal contract and tort claims.The Court noted that the courts of the country are split over the separate question of the availability of the equitable doctrine of reformation where an insured has failed to read an insurance policy.The Court stated they were convinced the majority view was correct – where effectuation of an antecedent agreement is thwarted by mutual mistake in reducing that agreement to writing, justice is not served by judicial enforcement of the mistaken writing, rather than the intended agreement, just because one of the parties did not read the writing.The Court concluded that failure to read and failure to mitigate should not and do not bar the remedy of contract reformation.

Motion to Amend Complaint: The district court separated the new allegations of the proposed amended complaint into three categories and denied amendment for a different reason as to each category.The district court presented a reasonable basis for each decision, based upon objective criteria.The complaint was filed in November, 2005 and the motion hearing was in August, 2006.It was not unreasonable for the district court to deny amendment of a complaint to add new issues to a ten-month-old case.

Holding:The district court appropriately granted summary judgment to BW Insurance and Ohio Casualty on the tort and contract causes of action contained in McMurry’s complaint because those causes of action were barred by McMurry’s failure to read the insurance policy documents sent to it.Summary judgment was not appropriate on the equitable doctrine of reformation, which remained viable under the majority rule, which the Court adopted.The summary judgments were reversed to that extent and the matter was remanded to the district court for further proceedings.The district court did not abuse its discretion in denying McMurry’s motion to amend its complaint and that denial is affirmed.